Denying a Benefit = Protecting the Client
While researching yesterday's blog on the Brooke Astor estate, I stumbled upon a number of legal blogs on the Astor guardianship dispute. Several of these including this one noted that the lawyer for Astor had come under scrutiny during the guardianship dispute. The issue was whether the lawyer himself played a role in unduly influencing Astor to make a Will thereby benefitting her son's charitable foundation. Such enquiry is, of course, of grave concern and considerably different than that faced by a lawyer who makes a Will in circumstances where there is some question as to whether the testator is capable to make a Will. Certainly, in Ontario, this latter issue has been exhaustively considered by the Court of Appeal in Bennett v. Hall. Put simply, if a lawyer is asked to make a Will (and has been retained for that purpose) but has questions as to the capacity of the testator, it is not inappropriate to make the Will and extensively document his file with notes so that the validity of the Will, if challenged, can be adjudicated by the Court. But what if the lawyer draws a Will under which he or she receives a benefit? A New York Probate lawyer, Philip M. Bernstein notes in his blog that Astor's lawyer had "been named as beneficiary on several occasions and has inherited such valuable goodies as Manhatten apartments and valuable works of art including at least one Renoir and a Diego Rivera drawing as well as substantial sums of cash." While this example is clearly at the extreme end of the spectrum, trusts and estates practitioners may occasionally encounter clients who wish to name them as a beneficiary of their estate. To accept a retainer in such circumstances is to invite allegations of suspicious circumstances and a presumption of undue influence which could cause the entire Will to be set aside. Surely counsel of caution is to decline a retainer anytime a client wishes to confer a benefit in a Will upon the drafting solicitor, regardless of the circumstances.
Enjoy the weekend,
David
